How do I MAKE her exempt?

System · May 2003

We just downsized our marketing department. We then gave the two remaining different titles and promoted and made one exempt. The one we made exempt is our graphic designer now "Creative Director" but she supervises no-one. What Ive read is that for a position such as her's she needs to supervise at least two people to be made exempt. In a brainstorming session to make this work someone came up with the suggestion that because part of her job was to make the store marketable, bright and pleasant to shop in then she could supervise the cleaners/janitors because part of all that was keeping the store clean.
Can we do this?

Crout · May 2003

If she doesn't supervise anyone she should not have the title of "Director." Rather than wasting her time with janitors, it makes more sense to me to change her position title. It sounds to me like she would meet the test for Exempt Professional.

Exempt Professional
1. Performs work requiring knowledge of an advanced type, in a field of science or learning, customarily required by a prlonged course of intellectual study, or work which is original and creative in nature in a recognized field of artistic endeavor, the results of which are primarily dependent on the employees invention, imagination or talent, and

2. Exercises independent judgement and discretion

3. Has a salary of $250 a week or more.

Rockie · May 2003

I agree with Crout. Most marketing people are classified as exempt under the professional exemption unless they are something like "Marketing Assistant" which is a glorified secretary in most cases.

Down_the_Middle · May 2003

Deez:

The issues of independent judgment and discretionary thinking are essential to any position deemed to be exempt. The position must be able to think outside of the box and make judgments considered to be material in nature-------- The DOL audits I've been involved with have ALWAYS looked for these differences to warrant exempt status. Your question suggests to me that you may not have much experience with exempt status and I would recommend some addt'l research to become more familiar with how the process works. It can be a VERY expensive mistake to incorrectly classify an employee as exempt............. good luck

System · May 2003

If we can just change her title, what would it be. I suggested creative coordinator but that was shot down. They are getting very fond of the idea of her adding janitors to her responsibilities. I know she won't be.
My difficulty is letting them know where I am getting this advice. I know that this site is secure but they are VERY paranoid about what info goes out and how it is worded. I would not be able to make a single joke about anything work related or dispaly any sarcasm etc. So if I tell them about the forum they will want to go on it and see how I say things etc.
The forum has become my new "best" friend and I have turned into what some of you have reffered to as "a forum junkie". I can't lose you guys now!

cthr · May 2003

>If we can just change her title, what would it be. I suggested
>creative coordinator but that was shot down. They are getting very
>fond of the idea of her adding janitors to her responsibilities. I
>know she won't be.
>My difficulty is letting them know where I am getting this advice. I
>know that this site is secure but they are VERY paranoid about what
>info goes out and how it is worded. I would not be able to make a
>single joke about anything work related or dispaly any sarcasm etc. So
>if I tell them about the forum they will want to go on it and see how
>I say things etc.
>The forum has become my new "best" friend and I have turned into what
>some of you have reffered to as "a forum junkie". I can't lose you
>guys now!

Why do you need to change her title? If she is performing the work of a graphic designer then that is what she should be called. Exempt status is based on job duties, decision making authority, etc. Go to the DOL website and look at the exempt classifications, pick the one she falls in to and show that to the "powers that be", that way you can protect your forum persona.

Down_the_Middle · May 2003

Deez:
Go to [url]www.dol.gov[/url] and then do a search for FLSA (Fair Labor Standards Act) . This is the section that deals this topic. It'll give you some essential information as you raise the question to your "doubting Thomas'"...... Good luck

Don D · May 2003

Down-The-Middle; I know hundreds of exempt managers who cannot think outside the box. I think you should revise your definition. x:-)

Crout · May 2003

You're kidding, right? Your senior managers actually want this person to manage janitors so he/she can be classified as exempt? Holy Screamin' Eagles. Go ahead and pull the material off the DOL site and try to get those idiots to change their minds. That's the most ridiculous thing I've ever heard, and that is saying something. Of course, we could probably start a thread with like, 3000 posts of bonehead management decisions.

Down_the_Middle · May 2003

Don D's right................ lost my head for a minute!#$%^&!

David Nagle VA · May 2003

Keep in mind that there are several so-called "white collar" exemptions, but that they cannot be combined. Whoever suggested the supervision of janitors is focusing on the executive exemption, which requires management of a unit and supervision of others. That, frankly, doesn't seem to be a very good match. You might be able to establish that the individual is exempt as either a professional (depending on the extent of the artistic/creative work involved) or as an administrative employee. The DOL regulations provide quidance. In addition, most of the state employment law letters have articles in the current issue (or will in the next issue) about the DOL's proposed revision of the regulations. But, as someone already observed, the supervision of janitors would be the wrong way to go--it is a weak case, and runs the risk that the DOL would challenge it as a scheme to avoid compliance with the FLSA.

David Nagle
Editor, Virginia Employment Law Letter
LeClair Ryan
[email]dnagle@leclairryan.com[/email]

How do I MAKE her exempt?

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